Origins of the Bill of Rights

Abstract

Origins of the Bill of Rights. By Leonard W. Levy. (New Haven: Yale University Press, 1999. Pp. xii, 306. $30.00.) Negotiating the Constitution: The Earliest Debates over Original Intent. By Joseph M. Lynch. (Ithaca: Cornell University Press, 1999. Pp. x , 315. $42.50.) Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. By Keith E. Whittington. (Lawrence: University Press of Kansas, 1999. Pp. xiii, 299. $39.95.) These three books represent contrasting disciplinary approaches-of history, law, and political theory-to a perennial issue: Can we identify what the Constitution's framers, ratifiers, and first effectuators intended or understood it to mean? In Origins of the Bill of Rights, Leonard W. Levy, former dean of Claremont Graduate School, distills the decades of scholarship that have made him a towering figure in the historiography of the Bill of Rights. Like other volumes in Yale's Contemporary Law Series (addressed to general readers), this book lacks notes; Levy appends a sketchy reading list, supplemented by the list of his writings opposite the title page. Levy's combative analysis provides few surprises for those familiar with his work on the Fifth Amendment or the First Amendment's speech, press, and religion clauses. It reflects his own origins as a scholar in the 1950s and 1960s-in particular, neglecting the recent scholarship that examines, more sympathetically than he does, the thought and actions of the Anti-Federalists. Even so, general readers will find this book a deft and enlightening introduction to the Bill of Rights and to Levy's work as a whole. In Negotiating the Constitution, Joseph M. Lynch, an emeritus professor of law at Seton Hall University Law School, investigates how such modern Supreme Court decisions as United States v. Lopez (1995) use and abuse original intent. He makes a significant contribution to a shopworn debate by asking how, in the first decade of government under the Constitution, politicians used evidence of original intentions or understandings undergirding the Constitution. Lynch's able review of congressional debates on disputes is more sensitive to political context than David P. Currie's The Constitution in Congress: The Federalist Period, 1789-1801 (1996). Unlike Currie, Lynch recognizes how those advancing or opposing expansive readings of the Constitution often did so to serve specific political goals or advance specific positions. Lynch, however, skews his interpretation of his central issue: the meaning of the Constitution's Necessary and Proper clause (Article I, section 8, clause 18). Embracing Alexander Hamilton's implied-powers interpretation, he denounces as unduly political the shifting course charted by James Madison. For Lynch, that clause's proper interpretation is and always was obvious; in his view, Madison is culpable for bowing to his native state's immediate political interests. Lynch fails to see that Madison was neither a consistent theorist on the modern academic model (a dubious honor that Lynch seems to bestow on Hamilton) nor a mere politician calculating what would best serve his constituents, but rather a working politician seeking to reconcile theory with practice, his cherished hopes as constitution-maker with his-and his allies'-evolving political agendas. In the most original of these books, Constitutional Interpretation, Keith E. Whittington, who teaches political science at Princeton University, has produced a companion volume to his Constitutional Construction: Divided Powers and Constitutional Meaning (1999). The earlier study explained Whittington's conception of constitutional construction, a subcategory of interpretation requiring the `imaginative vision' of politics rather than the `discerning wit' of judicial judgment (5). …